Odtojan v Glynn t/as Glynns Lawyers

1. [1]

   WHITE JA: This is an application for leave to appeal from orders of the District Court (Norton SC DCJ) of 28 March 2023 that the applicant’s Statement of Claim be struck out with limited leave to replead. The applicant, Ms Marie Odtojan, was a defendant in proceedings brought in the Local Court by Credit Corp Services Pty Ltd (“CCS”). CCS sued as assignee of a debt alleged to be owed by Ms Odtojan to St George Bank under what was alleged to be a “credit card agreement”. CCS pleaded that that agreement was entered into on or about 16 February 2006 and that, as at 4 May 2010, Ms Odtojan owed St George Bank $45,299.75. It pleaded that, on that day, St George Bank assigned to CCS its interest in the debt and its rights against Ms Odtojan under the asserted contract described as “credit card agreement, agreement number 4564851100920368”.

2. [2]

   The respondent, Mr Thomas Glynn, is a solicitor. He was retained by Ms Odtojan to act for her in the Local Court proceedings. According to Ms Odtojan’s Amended Statement of Claim in the District Court, he was retained as her solicitor from on or about 12 July 2016 to on or about 17 November 2016. The Amended Statement of Claim alleges that Ms Odtojan did not herself seek his services but a barrister, Mr Nicholas Ford, who had been acting for her since 23 February 2016 in the Local Court proceedings, insisted that she engage a solicitor and recommended Mr Glynn.

3. [3]

   CCS was successful in its claim against Ms Odtojan in the Local Court. Judgment was given in its favour on 16 August 2016. On 2 September 2016, costs orders in favour of CCS were made in the Local Court.

4. [4]

   In 2022, Ms Odtojan commenced separate proceedings against Mr Glynn and Mr Ford in regard to their conduct of her defence in the Local Court. They were not sued in negligence, although some of their conduct has been characterised by Ms Odtojan as “intentional negligence”. Rather, she alleges that they conspired with each other and with the lawyers for CCS for CCS to obtain judgments against her. The judgments are alleged to have been obtained by fraud and collusion.

5. [5]

   After judgment was given against Ms Odtojan in the Local Court, Mr Condon SC was retained to advise on the prospects of an appeal. Mr Condon and Mr Ford did not recommend an appeal. In separate proceedings brought against Mr Condon, Ms Odtojan alleged that he became a party to the conspiracy.

6. [6]

   On 16 February 2023, the primary judge heard notices of motion brought by Messrs Glynn, Ford and Condon for the summary dismissal of each proceeding, or that each Statement of Claim be struck out without liberty to replead, or if any liberty to replead were granted, it be subject to a requirement that Ms Odtojan serve a draft Statement of Claim with all documentary and affidavit evidence on which she relies. Orders were also sought for the setting aside of Notices to Produce served by Ms Odtojan on 14 November 2022 and the setting aside of Notices to Admit Facts served by her on 14 November 2022.

7. [7]

   The primary judge heard Mr Condon’s notice of motion first. In the course of submissions, her Honour expressed the view that the pleading was an abuse of process and failed to plead facts which, taken at their highest, would show that the conspiracy could be made out. She offered Ms Odtojan the opportunity to replead, which Ms Odtojan accepted.

8. [8]

   Ms Odtojan represented herself at the hearing before the primary judge.

9. [9]

   Having indicated the view she took on Mr Condon’s application, the primary judge heard oral submissions on Mr Glynn’s application.

10. [10]

    Ms Horvath SC, who appeared for Mr Glynn, submitted that Ms Odtojan was seeking to relitigate matters that had been determined by the Local Court. She accepted that, if Ms Odtojan were given liberty to replead her claim in relation to the advice given as to the prospects of an appeal, that would not involve a relitigation of issues already determined.

11. [11]

    After the luncheon adjournment, the primary judge announced an order she proposed in relation to Mr Condon’s application and observed:

12. [12]

    Submissions were then made by Mr McInerney SC and Ms Odtojan about her Honour’s proposed orders, after which there was the following exchange:

13. [13]

    Ms Odtojan submitted that:

14. [14]

    After further submissions dealing with Mr Condon’s notice of motion were made, Ms Horvath SC resumed her submissions to which Ms Odtojan responded orally over six and a half pages of transcript. Ms Odtojan had filed written submissions two days before the hearing, which the primary judge had not seen prior to the hearing but to which she was referred. Her Honour reserved judgment. Judgment was delivered on 28 March 2023. The orders made were:

15. [15]

    Before dealing with the primary judge’s reasons and Ms Odtojan’s submissions, it is convenient to describe the Local Court proceedings and the claim pleaded against Mr Glynn.

Local Court Proceedings

1. [16]

   In support of its claim in the Local Court, CCS relied on an affidavit of a Mr Adam Carpenter, the then head of “Operational Services” at CCS. He deposed that:

2. [17]

   The documents exhibited included an internal bank record headed “Credit Card Application” which, under the heading “Approval Details”, listed an account number which is the same number as CCS alleged in its Statement of Claim in the Local Court to be the credit card agreement number. The credit card limit approved was $40,000. The third document referred to by Mr Carpenter was entitled “Card Collection/Overdraft/Get Set Checklist”. That document bore a signature which purported to be the signature of Ms Odtojan under a declaration which stated that:

3. [18]

   The fourth document referred to in paragraph 6 of Mr Carpenter’s affidavit was a document entitled “Credit Card Conditions of Use”. It stated:

4. [19]

   The terms and conditions contained in this document were generic. Clause 15 stated that “you must pay us for all amounts debited to your card account”. Clause 17 stated that the annual percentage interest rate on the card account would be as shown in the Offer. “You” was defined to mean the person named as the account owner in the Offer. The “Offer” was defined to mean the “Credit Card Offer we make to you setting out details of your card account and other information which forms part of this agreement”. No document falling within that definition was included in the documents on which CCS relied as a document that related to the alleged contract.

5. [20]

   In her Further Amended Defence in the Local Court, Ms Odtojan denied that she had entered into a credit card agreement with the St George Bank as alleged, or at all. She alleged that she had received an unsolicited credit card from that bank in about February 2006. She denied any liability for contract interest and pleaded other specific defences. The other defences included that the provision of credit to her was an unjust transaction within the meaning of the Consumer Credit (NSW) Code which was amenable to being reopened pursuant to s 76 of the Code and that the credit card was unsolicited and was sent in contravention of s 12DL of the Australian Securities and Investments Commission Act 2001 (Cth) . Other defences were also specifically pleaded.

6. [21]

   Ms Odtojan contends that the Further Amended Defence was drafted by Mr Ford.

7. [22]

   In February 2006, the transaction was regulated by the Consumer Credit (NSW) Act 1995. Section 5 of that Act provided that the Consumer Credit Code set out in the Appendix to the Consumer Credit (Qld) Act 1994, as in force for the time being, applied as a law of New South Wales and, as so applying, could be referred to as the Consumer Credit (NSW) Code.

8. [23]

   That Code defined a “credit contract” as follows:

9. [24]

   There is no issue that the Code applied to the provision by the St George Bank of the credit afforded by the provision of the credit card.

10. [25]

    Section 12(1) of the Code provided:

11. [26]

    Section 15 provided that:

12. [27]

    Numerous matters were then identified, including that the contract document provide the credit provider’s name, the amount of credit to be provided, annual percentage rate or rates, the calculation of interest charges and so forth.

13. [28]

    Section 18 required the credit provider to provide the debtor with a signed copy of the contract document.

14. [29]

    Importantly, s 170 of the Code provided:

15. [30]

    There was no express provision that a contract for the provision of credit that did not comply with the requirements of ss 12 or 15 (or related provisions) was void or unenforceable.

16. [31]

    The hearing in the Local Court was listed to commence on 18 July 2016. Prior to the commencement of the hearing, counsel for CCS and Mr Ford for Ms Odtojan agreed upon a statement described as “Statement of Agreed Facts and Issues in Dispute”. Prior to their agreement on that statement, Mr Glynn had forwarded a draft of the Statement of Agreed Facts and Issues in Dispute to Ms Odtojan. Ms Odtojan is herself a solicitor and was then, as now, practising as a principal of Odtojan Bryl Lawyers. The statement as drafted by Mr Glynn included as an issue in dispute whether “… any Contract was in fact provided to the defendant”. Ms Odtojan advised Mr Glynn that she agreed and added:

17. [32]

    These matters were not taken up in the Statement of Agreed Facts and Issues in Dispute provided to the Local Court by counsel. The agreed facts included that, at some time in February 2006, Ms Odtojan received the credit card from the St George Bank and used it. The issues in dispute were identified as follows:

18. [33]

    In the hearing in the Local Court, CCS did not contend that the St George Bank had entered into a credit contract that complied with the requirements of ss 12 and 15 of the Consumer Credit (NSW) Code. Ms Odtojan did not plead or contend that failure to comply with those provisions meant that if she had entered into a contract with the bank, it was void or unenforceable.

19. [34]

    The issues as finally presented in the Local Court were summarised by the learned magistrate, Freund LCM, as follows:

20. [35]

    In the Local Court, Ms Odtojan denied that she attended the Castle Hill branch of the St George Bank on 25 February 2016. She denied signing the document entitled “Card Collection/Overdraft/Get Set Checklist Declaration Form” and asserted that the signature on that document was a forgery. She asserted that she received a credit card through the post which had not been solicited.

21. [36]

    The magistrate rejected these contentions. Her Honour found on the balance of probabilities that Ms Odtojan was provided with the terms and conditions document.

22. [37]

    The findings that Ms Odtojan did not receive the credit card without solicitation, but attended the bank, requested the provision of a credit card, provided the bank with personal information required for approval of the application, was given the document setting out the terms and conditions applicable to the use of the card, and was given the credit card and then used it, sufficed to establish that a contract was made between her and the bank for the provision of credit by the bank to her which included terms that she would pay the debt and the interest charged. That contract did not comply with the terms of the Consumer Credit Code. But it was not on that account void or unenforceable.

23. [38]

    Magistrate Freund found that a contract had been made. Her Honour made the following orders (as corrected by consent pursuant to the slip rule):

24. [39]

    On 29 August 2016, Magistrate Freund heard the parties on the question of costs. Her Honour ordered that Ms Odtojan pay CCS’s costs on the ordinary basis as agreed or assessed up to 17 December 2014, and pay its costs on the indemnity basis from 18 December 2014 except for two specified exclusions. The order for indemnity costs was based upon an offer of compromise made by CCS on 17 December 2014 in which it offered to compromise its claim in the sum of $37,000. The offer was open for acceptance for a period of 28 days from the date of the offer. It thus expired on 14 January 2015. Her Honour recorded:

25. [40]

    In his affidavit of 24 March 2015, Mr Carpenter had deposed that the solicitors for CCS, Piper Alderman, had provided a copy of those documents to Ms Odtojan on 12 January 2015. The fact that Piper Alderman had provided Ms Odtojan with the documents, which included the signed St George Bank credit card collection document and the St George Bank’s internal record of the credit card application, was not disputed. In the hearing before Magistrate Freund on 18 July 2016, Mr Ford, in his cross-examination of Mr Carpenter, asked the following question:

Ms Odtojan’s Pleading against Mr Glynn

1. [41]

   In her Amended Statement of Claim against Mr Glynn, Ms Odtojan alleged that he had been a party to a conspiracy with Mr Ford and with the lawyers for CCS to engage in wilful impropriety at the hearing before the Local Court to obtain an illegal judgment against her. She pleaded that, after judgment had been given in the Local Court, she discovered:

2. [42]

   She pleaded that, at the final hearing, she discovered that “… there was no Credit Contract produced in evidence” and that “the material issue of an alleged Credit Contract and alleged breaches of the credit legislation were never ventilated nor determined by the Court” (par 34). She pleaded that Mr Glynn deliberately omitted ventilating the applicable credit laws at the final hearing and conspired with CCS and its legal representatives to circumvent the credit legislation and penalties (par 37). She pleaded that Mr Glynn and Mr Ford had fraudulently removed the onus of proof from CCS to prove the existence of the pleaded Credit Card Contract (par 39). She pleaded that CCS and its legal representatives had intentionally pleaded matters asserting the existence of a Credit Card Contract which they knew was untrue (par 41). She pleaded that CCS and its legal representatives could only have obtained an illegal judgment at the final hearing and at the costs hearing by acting in concert with Mr Glynn and Mr Ford (par 42).

3. [43]

   CCS and its legal representatives were not joined as defendants to the proceedings.

4. [44]

   Ms Odtojan pleaded that Mr Glynn, in concert with Mr Ford, and in concert with CCS and its legal representatives, acted improperly by presenting and relying upon a case that the central issue in the proceeding was the Card Collection/ Overdraft/ Get Set Checklist document (which it was found that she signed) but omitted the real issue of the “Credit Card Contract” (par 43).

5. [45]

   Ms Odtojan alleged that Mr Carpenter committed perjury by giving false evidence referring to a credit card contract when he knew that what he said was untrue (par 45(h)(viii) 12). She alleged that Mr Glynn and Mr Ford intentionally failed to ask Mr Carpenter to identify what document he referred to as the contract (par 45(h)(viii) 13).

6. [46]

   Ms Odtojan alleged that Mr Glynn intentionally failed to provide to her an affidavit and materials served by CCS in support of their application for indemnity costs so as to deprive her of her right to review and reply to those materials (pars 70-73).

7. [47]

   There were other allegations of fraud and conspiracy but these were the most specific.

8. [48]

   The explanation for the allegations appears at paragraph 37 of the Amended Statement of Claim, which was as follows:

9. [49]

   The National Credit Code was not in force in 2006 when the agreement (as found by Magistrate Freund) was entered into for the provision of the credit card to Ms Odtojan. Nonetheless, there were equivalent provisions in force to those specified in the particulars under the Consumer Credit (NSW) Code, being, relevantly, ss 12 and 15 of that Code.

10. [50]

    The allegation against Mr Glynn and Mr Ford was that they fraudulently, and in collusion with CCS’s lawyers, suppressed what is alleged to have been the central issue before the Local Court, namely, that because of non-compliance with the credit laws, there was no credit contract that CCS could enforce.

11. [51]

    In the course of submissions on the application for leave to appeal, Mr Bryl, who was given leave to speak for Ms Odtojan as her McKenzie friend, challenged the totality of the orders made by the primary judge, and in the alternative, the order limiting the right to replead, which precludes Ms Odtojan from repleading the claims of fraud and conspiracy in relation to the conduct of the hearing in the Local Court. Ms Odtojan also opposes the requirement that she provide the evidence and documents on which she relies for her allegations. Mr Bryl submitted that all of the evidence and documents to be relied upon were pleaded in the Statement of Claim and provided in Ms Odtojan’s affidavit served in opposition to the notices of motion for summary dismissal. That material is extensive. It includes the pleadings and the whole of the transcript in the Local Court, Mr Carpenter’s affidavit exhibiting the documents on which CCS relied and correspondence between Ms Odtojan and Mr Glynn. The primary judge was, and this Court is, well-placed to assess whether there is an arguable basis for the claims of fraud and collusion Ms Odtojan seeks to advance.

12. [52]

    The allegations of fraud and conspiracy as pleaded are based upon the contention that, in the absence of a contract document required by the then ss 12 and 15 of the Consumer Credit (NSW) Code (now ss 14 and 17 of the National Credit Code) there could be no credit contract on which CCS could rely. This is a false premise. The contract, as found by the Local Court, arose from the findings summarised at [37] above. They were sufficient to allow the magistrate to draw the conclusion that there was a contract for the provision by the St George Bank of credit to Ms Odtojan which obliged her to repay the debt accrued on the card and interest in accordance with the interest charges debited to the card account.

13. [53]

    That contract was a credit contract within the meaning of s 5 of the Consumer Credit (NSW) Code. It did not comply with the requirements of ss 12 and 15 of the Code. It was not on that account unenforceable (s 170 of the Queensland Code).

14. [54]

    Mr Bryl referred to Duggan & Lanyon’s Consumer Credit Law (2020, 2nd ed, LexisNexis Butterworths), which he submitted established that in the absence of a credit contract, a credit provider could not sue a debtor and any alleged contract would be unenforceable.

15. [55]

    The learned authors of that text state the following (the references to ss 14, 17, 22, 111, 124 and 193 are to the National Credit Code. There were equivalent provisions in force in 2006 in the Consumer Credit (NSW) Code, namely, ss 12, 15, 100, 114 and 170):

16. [56]

    Custom Credit Corporation Ltd v Gray [1992] 1 VR 540 concerned the Credit Act 1984 (Vic). That Act provided draconian consequences for a credit provider who did not comply with it. A credit contract could be made by being in writing signed by the debtor, or by the credit provider’s accepting a written offer signed by the proposed borrower. Mr Gray obtained credit for the purchase of a Toyota motor vehicle. At the time Mr Gray provided his signed offer it did not specify times for payment of instalments. After Mr Gray signed his offer, an officer of Custom Credit or Toyota completed the details on the offer document by specifying when the first and subsequent instalments were due, and sent the document back to Mr Gray (at 543). Section 36(1)(g)(v) of the Credit Act required a loan contract to state the time for payment for each instalment. Section 32(5) provided that any alteration to an offer after signature by the debtor was of no force or effect. Because Mr Gray did not initial the alterations, they were of no force or effect. There was no contract in writing signed by Mr Gray. His acceptance by conduct of Custom Credit’s counter-offer did not constitute a binding contract because, without regard to the alterations made by Custom Credit or Toyota to the offer document, the contract was void for uncertainty.

17. [57]

    Extreme caution is needed in applying the reasoning in cases such as Custom Credit Corporation Ltd v Gray and Mercantile Credits Ltd v Comblas (1982) 56 ALJR 499 to cases arising under the State Consumer Credit Codes and the National Credit Code. This is because s 170 addressed and s 193 addresses what was perceived to be the mischief of the draconian consequences for non-compliance under the earlier law, by providing that non-compliance with the provisions of the Codes does not render a contract void or unenforceable unless there is an express provision to that effect.

18. [58]

    Mr Bryl also referred to the Local Court Bench Book, which provides (at [34]-[100]) that proceedings under the Code should be commenced by summons accompanied by a supporting affidavit to which a copy of the contract is annexed, and which addresses specified matters required by the Code.

19. [59]

    The Bench Book does not address the procedure where there has been non-compliance with the Code.

20. [60]

    It is upon the false premise referred to in [52] that Ms Odtojan alleges that because what she asserts to have been the central issue in the Local Court proceedings was not raised, the reason for its not being raised was fraud on the part of her lawyers and collusion between them and the lawyers for CCS.

21. [61]

    Even if Ms Odtojan’s understanding that for a credit contract to be enforceable it had to found in a signed contract document were correct, it would not justify her allegations of fraud and conspiracy. The possibilities that her lawyers took a different view of the law, or that they failed to consider the matter adequately could not be excluded. Although Mr Bryl denied that the reason fraud and conspiracy were pleaded was to seek to avoid a plea of advocates’ immunity, no satisfactory explanation was given as to how fraud and conspiracy might be established, or why a cause of action in negligence was not pleaded, unless Ms Odtojan thought such a plea would have been subject to the immunity.

22. [62]

    Ms Odtojan relied upon the amendment of the Statement of Agreed Facts and Issues in Dispute referred to at [31] and [32] above which she contends was made without her knowledge or consent. Assuming that to be so, they do not advance a case of fraud or collusion. Rather, they are consistent with counsel for the parties in the Local Court accepting that there was no issue whether a contract had been documented in accordance with the requirements of the Code, and that the real issue was whether any contract had been made at all.

Hearing before the primary judge

1. [63]

   As set out earlier in these reasons, the hearing of the three notices of motion before the primary judge on 16 February 2023 proceeded consecutively. Mr McInerny SC, who appeared for Mr Condon, addressed the Court first and provided an overview of the background to the notices of motion and the various claims. The primary judge summarised the background and said:

2. [64]

   Ms Odtojan takes issue with the statement that the orders made in Mr Condon’s matters were made by consent, but that is not of present relevance.

3. [65]

   In relation to the allegations against Mr Glynn, Ms Horvath SC submitted that those paragraphs of the Statement of Claim should be dismissed with no liberty to replead because the claims made were an impermissible attack on the judgments of the Local Court where those judgments have not been appealed and amounted to an abuse of process by attempting to relitigate issues determined in the Local Court (at J [37]).

4. [66]

   The primary judge upheld that submission. Her Honour said:

5. [67]

   These reasons combine two themes. First, that Ms Odtojan could not relititgate the matters determined by the Local Court in collateral proceedings that there was a binding contract between Ms Odtojan and St George Bank, under which she was liable to CCS, and secondly, that there was no evidence that could support the allegations of conspiracy (para [55]).

Challenges to the judgment

1. [68]

   Ms Odtojan submitted that she was denied procedural fairness. She submitted that her case “[was] not heard before the court”. She submitted that the primary judge only heard Mr McInerney SC giving an overview of all three defendants’ cases and she was not given the opportunity properly to present her case.

2. [69]

   I reject that submission. The transcript shows the contrary. It is true that before Ms Odtojan had made submissions on Mr Glynn’s notice of motion the primary judge expressed the view that any leave to replead would not extend to claims that would impeach the Local Court’s judgments which had not been appealed (see at [12] above). But the primary judge had not closed her mind on that question. She heard extensive further argument.

3. [70]

   Ms Odtojan complains that the primary judge did not address her Notice to Admit Facts and Notice to Produce. That is true. During the hearing, the primary judge indicated that in respect of Mr Condon’s application she proposed to set aside Notices to Produce and to Admit Facts addressed to him. Her Honour did not address that part of Mr Glynn’s motion that sought the setting aside of the notices addressed to him.

4. [71]

   The Notices to Produce documents and to Admit Facts were served before the filing of defences. Relevantly, the Notice to Produce sought the production by Mr Glynn of the “credit contract” contained in the appeal advice and documents containing a letter of offer or stipulating an interest rate contained in the appeal advice. The Notice to Admit Facts sought an admission that Mr Glynn had not seen “the Credit Contract” referred to in two appeal advices.

5. [72]

   The notices proceeded on the same misconception as underpins Ms Odtojan’s claim. Although it would have been preferable for the primary judge to have dealt with Mr Glynn’s application to set the notices aside, that is not something about which she can complain.

6. [73]

   The draft notice of appeal alleges “breach of bias rule”. There was no basis for the allegation of either apprehended or actual bias. Suffice it to say, the applicant’s contentions, which were in the nature of mere assertions, ought not to have been made: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[78].

7. [74]

   Ms Odtojan submits that the primary judge erred in holding (at [54] and [56]) that her Statement of Claim raises issues which were considered and rejected by the Local Court. The issue whether non-compliance with the requirements of the Code meant that no contract had been formed, or that any contract that may have been formed was void or unenforceable, was not raised in the Local Court. That is her complaint.

8. [75]

   On the other hand, the Local Court did determine that Ms Odtojan had entered into a credit contract with the St George Bank. Her present claim seeks to challenge that finding, notwithstanding that she has not brought proceedings to have the Local Court’s decision set aside.

9. [76]

   In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, the High Court explained that the justification for the continuation of advocates’ immunity in this country is that once a controversy has been resolved by judicial decision it cannot be reopened except in a few narrowly defined circumstances (at [45]); see also Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [34]-[35]).

10. [77]

    Impeachment of a judgment for fraud or collusion are two such circumstances. The question is whether that can be done collaterally, or whether it was necessary for Ms Odtojan successfully to bring proceedings against CCS to set aside the Local Court judgment on the grounds that it was obtained by fraud or collusion, before she can maintain her present claim.

11. [78]

    Mr Bryl referred to Lazarus Estates Ltd v Beasley [1956] 1 QB 702 per Lord Denning MR at 712 for the aphorism “fraud unravels everything”. But that case did not concern a challenge to the effect of a judgment allegedly obtained by fraud. He also referred to R v Saddlers’ Co (1863) 10 HLC 404; 11 ER 1083, where Willes J, as one of the judges asked to provide advice to the House of Lords, said (at 431; 1093-4) that a judgment obtained by fraud may be treated as a nullity and can be impeached in collateral proceedings.

12. [79]

    That statement, in its full width, is no longer good law, if it ever was. In cases where it is alleged that the plaintiff has suffered loss by reason of a judgment obtained by fraud, not involving collusion between the parties to the proceedings, it is necessary for proceedings to be brought to set aside the judgment (Boswell v Coaks (No 2) (1894) 86 LT 365n(a) at 366 (alleged false evidence); Cabassi v Vila (1940) 64 CLR 130 at 139, 141, 148; [1940] HCA 41 (alleged conspiracy of witnesses to give false evidence to obtain judgment by fraud); Cachia v Westpac Financial Services Ltd [2003] NSWSC 513; [2005] NSWCA 239 at [2]-[3] (nature of alleged fraud on the Federal Court not clear, but no suggestion of collusion); Markisic v Department of Community Services of New South Wales & Ors (No 2) [2006] NSWCA 321 at [42], [45]-[50] (alleged fraudulent misrepresentations to the Family Court as to the status of certain persons); Schepis & Anor v Esanda Finance Corporation Ltd & Anor [2007] QCA 263 at [7]-[17] (alleged collusion amongst defendants to alter evidence)).

13. [80]

    In Boswell v Coaks (No 2), the Earl of Selborne said (at 366) that there were two classes of case which needed to be distinguished. One class was where “… by the collusion of the parties, the process of the courts has been abused and the whole proceeding may be described … as fabula non judicium”. In the second class, the judgment was binding unless and until set aside on the ground of a fraud practised on the court.

14. [81]

    The former class is a subset of the latter. The cases cited by Willes J in R v Saddlers’ Co were of the former class.

15. [82]

    The earliest of the judgments cited by Willes J in point of time was Shedden v Patrick et al (1854) 1 Macq HL 535, an appeal to the House of Lords from a judgment of the Court of Session where an earlier decision of that Court in 1803 had been affirmed by the House of Lords in 1808. Lord Brougham said (at 619):

16. [83]

    As Lord Brougham explained (at 620-621), this was consistent with The Duchess of Kingston’s Case (1776) 1 Leach 146; 168 ER 175; Smith’s Leading Cases, 13th ed, Vol 2 p 644. The Duchess was prosecuted for bigamy and relied upon a decree of jactitation of marriage of the Consistory Court of the Bishop of London pronouncing that she was free from all matrimonial contracts and espousals with her asserted husband. She then married the Duke of Kingston. Her prosecution was before the House of Lords in full Parliament. The judges advised the House that the decision of the Consistory Court was not conclusive if it were proved to have been obtained by fraud or collusion. In Shedden v Patrick, Lord Brougham said that it was satisfactorily proved that the proceeding in the Consistorial Court was “fraudulent and collusive”.

17. [84]

    In The Earl of Bandon v Becher (1835) 3 Cl & Fin 479; 6 ER 1517, a decree had been made in the Court of Exchequer in relation to an entailed estate in a suit between a mortgagee and the tenant in tail. A bill was brought in the Court of Chancery by the remainderman alleging that the decree in the Court of Chancery was obtained by fraud and collusion of the parties. Lord Brougham approved the following argument (at 510-511;1529):

18. [85]

    This was said notwithstanding the submission of counsel that it was open to the remainderman to file a supplemental bill to enable him to appeal against the decree (at 495;1523).

19. [86]

    Lord Brougham did not dissent from the argument that it would have been open to the plaintiff to seek review of the original decree.

20. [87]

    However, the case failed on the facts and the decree was affirmed (at 512;1529).

21. [88]

    In Philipson v The Earl of Egremont (1844) 6 QB 587; 115 ER 220, a trading company called the Commercial Steam Packet Company was established pursuant to letters of patent issued by the Crown. Proceedings against the company were required to be brought in the name of one or two officers sued on behalf of the company. The claim was brought against the secretary of the company. Judgment was recovered against him in that capacity that was binding on the company. The Earl of Egremont was then sued as a member of the company who was liable for its debts. The Court of Queen’s Bench held (at 605; 227):

22. [89]

    In Emanuel Management Pty Ltd (in liq) & Ors v Fosters Brewing Group Ltd (1999) 73 SASR 303; [1999] SASC 68, the plaintiffs alleged that two directors of the Emanuel Group conspired with directors of Fosters to put into place a scheme which was a fraud on the companies of the Emanual Group and their creditors and part of the scheme involved the entry of judgment in the Supreme Court of Queensland in favour of the Fosters companies to enable them to control the voting of meetings of creditors (at [20]). Debelle J transferred the proceeding to that Court as his Honour considered that the claim could not succeed unless the judgment of that Court were set aside. His Honour said:

23. [90]

    With respect, it is not a correct understanding of Willes J’s reasons that he was not excluding the necessity for proceedings to set aside the judgment. His reasons were to the contrary. The issue Willes J was addressing was whether the admission of the plaintiff as a member of the Saddler’s Company was void or only voidable if it was obtained by a fraudulent representation as to his solvency, that being a necessary criterion for qualification for admission. The judges were divided on this issue. Willes J reasoned by analogy to the cases he cited in holding that the plaintiff’s admission was void (at 431; 1093) (“The admission cannot be put higher than a judgment or decree…”). The House of Lords did not decide the point.

24. [91]

    Nor is it the case that it will always be necessary to require separate proceedings to set aside the judgment by proving the collusion. In The Duchess of Kingston’s Case, no proceedings were brought in the Consistory Court to set aside the decree of jactitation of marriage. The Crown could not have brought such an application. In Philipson v The Earl of Egremont the defendant could not have brought separate proceedings to set aside the judgment in proceedings to which he was not a party.

25. [92]

    In Cabassi v Vila, Williams J, with whose reasons Rich ACJ agreed, cited with approval Lord Selborne’s observation in Boswell v Coaks (No 2) that, where a judgment has been procured by collusion, the case may be described as fabula non judicium (a story or fable, and not a judgment). This was the expression used in The Duchess of Kingston’s Case by Lord Loughborough (Shedden v Patrick at 608).

26. [93]

    There is much to be said for Debelle J’s view that, even where collusion is alleged, the allegation should not be entertained if it is open to the party alleging fraud and collusion to seek to set aside the judgment. But the cases in which it has been held that a judgment obtained by collusion involving the practice of a fraud on the Court can be treated as a nullity have not all proceeded on the ground that the party asserting the judgment to be a nullity would not be able to have the judgment set aside on that basis. Rather, it was said that if fraud and collusion of both parties were established, the judgment should be treated as if it were not a true judgment at all.

27. [94]

    Neither a summary dismissal application, nor an application for leave to appeal, where the issue has not been fully argued, is an appropriate vehicle for resolving the issue.

28. [95]

    If it were shown that there is an arguable basis for alleging that CCS or its lawyers colluded with Mr Glynn and Mr Ford fraudulently to procure a judgment against Ms Odtojan on CCS’s claim, I would accept that the claim should proceed to trial, notwithstanding that if the claim succeeded, it would impeach the judgment of the Local Court which has not been set aside.

29. [96]

    But there is not a skerrick of evidence to support the premise. We have been provided with the judgments and pleadings in the Local Court and the full transcript of the hearing. There is nothing in them that provides any basis for the allegation of collusion between CCS or its lawyers, and the lawyers for Ms Odtojan. To the contrary, the case was hard fought on what counsel perceived to be the issues for trial.

30. [97]

    In so far as Ms Odtojan relies on “mere” fraud on the part of Mr Glynn or Mr Ford, not extending to collusion with CCS or its lawyers, then even if there were a basis to plead fraud, leave to replead could not be given where no proceeding to set aside the judgments of the Local Court had been brought (see [79] above).

31. [98]

    Ms Odtojan relied on the reasoning of the Court of Appeal of England and Wales in Allsop v Banner Jones Ltd (t/as Banner Jones Solicitors) [2022] Ch 55 where Marcus Smith J, with whom Arnold and Lewison LJJ agreed, said:

32. [99]

    This was said in a claim against the plaintiff’s former lawyer for his conduct of family law proceedings that did not go well for the plaintiff. Such a claim would be defeated by advocates’ immunity in Australia, but in England the immunity has been abolished. At least as applied to the position of “advocates” in contested litigation, this reasoning cannot stand in this country with the rationale adopted by the High Court for advocates’ immunity, namely that the immunity is not for the benefit of lawyers, but to preserve the finality of judgments from collateral attack. In my view, questions of finality arise even where the loss claimed is the loss of a chance that the judgment might have been different (Jimenez v Watson [2021] NSWCA 55 at [25]). Nor is the question one of unfairness to a party, manifest or otherwise.

33. [100]

    Because of the limitation on the right to replead, because Mr Glynn did not provide advice on the prospects of appeal, and because the primary judge’s decision is practically tantamount to the summary dismissal of Ms Odtojan’s claim, I have proceeded on the basis that it must be clear beyond any doubt that her claim could not succeed (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43]). I am so satisfied.

34. [101]

    For these reasons I would refuse leave to appeal.

35. [102]

    Mr Glynn did not seek leave to cross-appeal from the primary judge’s limited grant of leave to Ms Odtojan to replead.

Potential referral of papers to the Legal Services Commissioner

1. [103]

   In Odtojan v Condon [2023] NSWCA 129, Leeming and Kirk JJA expressed concerns about the allegations made by Ms Odtojan and Mr Bryl about the conduct of Mr Condon and the primary judge. Their Honours gave Ms Odtojan and Mr Bryl 14 days to show cause why the Court’s judgment and the papers should not be referred to the Legal Services Commissioner.

2. [104]

   In Odtojan v Condon (No 2) [2023] NSWCA 149, their Honours referred the papers to the Legal Services Commissioner.

3. [105]

   That decision was given on 3 July 2023. The hearing of this application took place on 11 October 2023. Similar allegations were advanced to those deprecated by Leeming and Kirk JJA. For example, there was the following exchange:

4. [106]

   As Ms Odtojan and Mr Bryl had been told by Leeming and Kirk JJA, rule 32.1 of the Solicitors’ Rules provides that:

5. [107]

   Notwithstanding their Honours’ admonition and their referral of the papers to the Legal Services Commissioner in the matter of Odtojan v Condon, Ms Odtojan and Mr Bryl maintained allegations of fraud and collusion against Mr Ford and Mr Glynn for which they have not demonstrated any proper basis. It may be that they did not appreciate that s 170 of the Credit (NSW) Code undermined the premise of their allegations, although that provision was referred to in Mr Condon and Mr Ford’s advice. Even if that be so, there was no reasonable basis for the allegations. The conduct of which they complain could be readily explained as matters of oversight, if it were not the conscious recognition by Mr Glynn and Mr Ford of the effect of s 170 of the Consumer Credit (NSW) Code.

6. [108]

   I propose the following orders:

   1. (1)

      Summons for leave to appeal dismissed with costs.

   2. (2)

      Within 14 days Ms Odtojan and Mr Bryl show cause why this judgment and the papers in this Court not be referred to the Legal Services Commissioner.

7. [109]

   BASTEN AJA: I agree with the orders proposed by White JA.

8. [110]

   To justify those orders it is not necessary to enter upon the legal issues concerning the appropriate procedural mechanism for challenging a judgment said to have been procured by the fraud of one party (or its lawyers) colluding with the lawyers of the other party to defeat her interests. As White JA explains at [96] above, no arguable evidential basis for alleging either fraud or collusion on the part of the defendant (or of counsel briefed by him, or the legal representatives of CCS) has been identified. The claims so pursued have every appearance of being a contrivance to justify the decision not to appeal, nor to seek leave to appeal out of time, from the judgment in the Local Court. Otherwise, as Mr Bryl appeared to accept, they were relied on to avoid possible proceedings for incompetence or negligence of the lawyers foundering on the rock of advocates’ immunity. However that may be, the factual basis for an arguable case of fraud or collusion was absent.

9. [111]

   Nor is it necessary to rely on the Solicitors’ Rules governing conduct between members of the profession, fundamental as they are to the proper administration of justice; the allegations of fraud and collusion without a hint of justification would not be countenanced whoever the proposed defendants were.